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Debating Europe’s justice deficit

On Thursday June 4th, at LSE, a debate was held between Justice Giuliano Amato of the Constitutional Court of Italy (former Italian Prime Minister) and Professor Christian Joerges of the Hertie School of Government to launch the publication by Hart Publishing of a new collection of essays on ‘Europe’s Justice Deficit?‘, edited by Dimitry Kochenov, Gráinne de Búrca and Andrew Williams.

Christian Joerges launched the debate by reflecting on the EU’s origins, and on the strong influence of German ordo-liberal economic theory in the creation and design of the European Economic Community. He explained an ordo-liberal legal framework as one which “privileges and constitutionalises a private-law society”; and which treats as ‘just’ whatever a system of undistorted competition delivers. He asked the audience whether the EU’s institutional design and its ordoliberalism-inspired “integration through law” agenda has been an obstacle to the pursuit of justice instead of a means of fostering it. Citing the various challenges which have been made to this ordo-liberal vision by writers such as Fritz Scharpf, Jürgen Habermas and Wolfgang Streeck, he emphasised the democratic and social embeddedness of markets and their dependence on other institutions for their capacity to deliver justice, and doubted whether the EU in its current form has that capacity. Moving on to the writings of John Rawls and Thomas Nagel on the scope of justice, and on the difficult question of whether ‘justice between states’, and particularly any form of redistributive justice, is really possible, he posed the question: “what are the Greeks entitled to expect from the Germans?” The EU is better understood, he suggested, in terms of ‘inter-democracy’ (to use a term derived from Daniel Innerarity’s work) rather than being thought of as itself a democratic system.

On the current crisis, with its politics of austerity and governance-by-troika, Joerges argued that the kind of interventionist European economic and financial management we have seen in recent years is actually far removed from the ordo-liberal vision, in its reliance on discretionary power rather than justiciable rules. Finishing on an understandably gloomy note, he suggested that while the EU’s crisis management may well destroy southern European economic cultures, the social and institutional resistance of these cultures means that it will nevertheless be unable to replace them with some other top-down model of economic governance.

Giuliano Amato, in response, struck a more positive tone. While his analysis of Europe’s ills shared much in common with that of Christian Joerges, particularly as far as the current state of EU affairs is concerned and the inadequacy of its political institutions and fiscal capacity to support the economy, he presented both a more positive vision of the EU’s original model as well as a more forward-looking set of suggestions for how to move the EU beyond its current state of crisis, discontent and injustice. He began with the question whether it was indeed appropriate to apply the standards of justice which are generally applied to a nation state to an entity like the EU, or whether a functionally limited economic system could only be appraised by some other standards. In other words: what kind of entity is the EU, for the purpose of considering questions of justice?

While Joerges had located the founding vision of the EU in the common market project with its ordo-liberal influences, Amato returned to the deeper federal vision animating the project of European integration in the late 1940s and early 1950s, before the demise of the European Defence Community and its infant-sister European Political Community caused a retreat from this broader political and social vision. The decision to emphasize economic integration in the EEC treaty and to leave social matters to the states was a strategic sideways step, in his view, and not a full retreat from the social and political vision. The crucial importance of solidarity was always evident and indeed present in early European documents like the Schuman declaration, and over time in instruments like the European structural and social funds, and even in the ‘commutative justice’ of EU agricultural policy. Amato pointed to the adoption of the Charter of Fundamental Rights and the way in which respect for social rights and social justice gradually came to be articulated in the early and ‘horizontal’ articles of the treaties as EU values. Taking into account the evolution of these and other features, he suggested, it is less easy now to argue that the EU is not a polity to which the normal standards of justice we expect from a state should be applied. At the same time, he acknowledged, many of these aspirational treaty provisions are not fulfilled in practice and there is a great deal of social and economic injustice in the EU today.

Nevertheless, instead of despairing of the EU’s ability to rise to the enormous challenges facing it, Amato went on to articulate a series of more positive reflections on the EU’s capacity to do justice as well as on what steps might be taken to address the most serious kinds of injustice. In terms of its past and existing contributions to the advancement of justice, he cited some illustrative examples: first, the abolition of the death penalty across Europe and the EU’s continued advocacy for its abolition elsewhere; second, its leading role in the advancement of gender equality; and thirdly, its position at the forefront of the promotion of environmental protection and environmental justice.

As far as future steps are concerned, he suggested that the EU needs to return to its roots and to reboot its original solidarity-based vision and project. He drew on a proposal made at the “State of the European Union” conference at the European University Institute in Florence last month for the adoption of a new Schuman Declaration, which calls for the restoration of solidarity amongst citizens and the revitalization of Europe. He suggested that instead of turning away from Europe all except those in the narrowest category of political asylum-seekers, there should be a return to the EU’s declared commitment in the Tampere Agenda on migration in 1999 to prioritize the fight against the roots of poverty in the countries of origin and to recognize the needs of economic migrants. Finally, he referred to an innovative proposal, set out in the ‘new Schuman Declaration’ initiative mentioned above, for the EU to set a minimum threshold of social and health protection to be ensured by all Member States. While the states themselves would remain primarily responsible for social and health protection, they could not fall below this EU minimum threshold. An EU fund would be established and in the event that a state lacked sufficient resources to meet the minimum threshold, the EU would – in the spirit of subsidiarity – restore it from this fund.

A lively debate followed these two somewhat contrasting accounts of Europe’s justice deficit and of the EU’s prospects for advancing rather than hindering the pursuit of justice across its Member States. Amongst the many different views expressed by the speakers and the audience, the one message which emerged very clearly from the entire event was this: Europe’s leaders need to summon the creativity and the courage to renew the original vision of European solidarity and to act boldly upon it, if the EU is to move beyond its current bleak and weakened state.